HOW TO CHALLENGE A TRESPASS CHARGE AND (MAYBE EVEN) GET OFF
based on the experiences of the Jabiluka Arrestee Information and Legal
Support service (JAILS).
DISCLAIMER: This was not written by a lawyer! It shouldn't be taken as
legal advice and will not be applicable to every situation. If you are
arrested, however you want to plead, you should speak to a real lawyer first.
These tips are for people intending to challenge their charge on the facts
of the arrest and the details of the charge. They are sneaky but entirely
legitimate tricks that worked for (some of) the Jabiluka defendants, and
may work for you. Even if they do not relate exactly to your situation, try
thinking along these lines and looking for holes in the prosecution's case
you can use to your advantage (this is how lawyers work). But remember that
this is not the only way to deal with a criminal charge. Some people may
regard such a defence as morally bankrupt because it pretty much ignores
the motivation behind your action. Others may not want to get off but
simply to present a political argument to the court. (In that case there
are actual defences within the various Criminal Codes such as
"authorisation" or "sudden and extraordinary emergency" which can be used
to advance a political or moral argument. None of the Jabiluka defendants
who used such arguments got off, but they got a lot out of the experience.)
Many people just want to plead guilty and get it over with. Others go for
total non-co-operation with the system and disappear. These are all totally
legitimate options.
THE GOLDEN RULE:
Don't assume that just because you have been charged, you will be
convicted! Remember that you are innocent until PROVEN guilty. It IS
possible to defend yourself AND get off. Many Jabiluka defendants did so.
Although they were charged under the Northern Territory Trespass Act ,
every state has similar versions of the two most common charges used at
Jabiluka, "trespass after direction to leave" and "trespass on enclosed
lands/premises". Although the protesters at Jabiluka were charged for
trespassing on a mine site, many of these same points have to be proven by
the prosecution regardless of whether the 'trespass' is in a forest coupe,
on a road, or in a squatted or corporate building. Some of these are basic
rules of evidence and are relevant to any criminal charge.
Although it is a criminal offence, trespass seems to be regarded by the
police (and the courts) as a simple insignificant charge- one which is
easily laid and supposedly easy to prove. However, all criminal charges
have to be proven beyond reasonable doubt. It's not up to you to prove that
you weren't trespassing. It's up to the prosecution to prove that you WERE.
This is called putting the prosecution to proof (and this goes for all
criminal charges).
Many Jabiluka defendants were improperly charged. The sheer bulk of people
arrested in mass actions meant that the police often laid charges sloppily,
wrongfully, and without sufficient evidence to make them stand up in court.
They probably expected everyone to plead guilty out of convenience or
intimidation by the court process. Your case will be heard in the
Magistrates Court, or the Court of Summary Jurisdictions, which deals with
quite minor matters. The magistrates are generally not used to people
presenting lengthy arguments or tricky defences, and we found that the
prosecutors in the Northern Territory assigned to the Jabiluka trials were
the least experienced and often under-prepared. All this means that if you
challenge your charge, you have the element of surprise on your side.
However, bear in mind that defending yourself WILL take time, a lot of
preparation and possibly money. It also means that you will have to return
to the jurisdiction in which you were charged and will have to be prepared
to potentially pay court costs if you lose.
THE CHARGE:
- Check every single point of your charge for possible loopholes. Try and
think like an anally-retentive lawyer. Get hold of all the prosecution's
evidence against you (you are entitled to this as a defendant). Find out
which witnesses they are planning on calling and get copies of their
statements. Make sure you have a copy of the police precis (the police
story of events). You are being challenged on the events described in your
precis, not what YOU say happened. This is very important. If your precis
is completely contradictory to the actual events, the prosecution may not
have a case against you. It may be worth informing them of this before it
goes to trial just in case they decide it is in their interests not to
prosecute you.
- The law is incredibly pedantic. This can be good. Check the way your
charge is written, particularly WHO is charging you. Even the most minor
police slip-up can be fatal to their case. A group of Jabiluka defendants
got off because their charges referred to the occupier of the Jabiluka
mineral lease being ERA Pty Ltd, which in fact didn't exist. The company
should have been described as "ERA Ltd". The defendants asked the
prosecution to prove ERA Pty Ltd's existence with a company extract or
Certificate of Incorporation. They were unable to do so. Also,discrepancies
between the charge and the police evidence can be useful to your case,
especially if the wording of the charge is very general. In this particular
case, evidence was only given about an entity called "ERA", not the ERA Pty
Ltd described in the charge, and about "Jabiluka" or "Mineral Lease North
1/MLN1", rather than the specific "Jabiluka Mineral Lease" referred to in
the charge. The magistrate may pass such errors off as technicalities and
allow the prosecution to amend the charge, but in this case she didn't and
the defendants got off.
EVIDENCE:
- Many of the precis given to Jabiluka defendants arrested in mass actions
were very general, eg. "the defendant was one of a group o f protesters
who walked onto the mineral lease..." The prosecution have to be able to
prove that YOU personally did what they have accused the group of. If you
are not named in your precis, and none of the police witnesses can remember
you, and are able to PROVE in court that they remember you, and you do not
appear on any of the police videos (you are entitled to view these prior to
your case), then the chances are that you will get off.
- The prosecution will probably try to get you to agree to certain 'facts'
before your trial, for example in the case of Jabiluka, that the Jabiluka
lease exists over a certain area. (If you are arguing along the lines that
a company's occupation of premises is illegitimate, against the wishes of
Traditional Owners or contrary to a native title claim, then obviously you
won't want to agree to this). The prosecution may offer you a "discount" if
you co-operate in this way: by not "wasting" the court's time by making
them prove every little aspect of the case, your case may run for an few
hours instead of up to several days, which means saving yourself
potentially hundreds of dollars of court costs per day if you lose. But if
you don't agree to any facts, they can be made to PROVE every single
technicality. They will quite possibly be unable to do so and they realise
this, which is why they are trying to "cheat" at this stage of the process.
- The prosecution may need to call certain witnesses to prove certain
elements of the charge. This goes for any charge, not just trespass. If the
witnesses are unavailable, or the prosecution decides it is too expensive,
and not worth their while, to bring them from interstate, you can argue
that your charge has not been proven. On the other hand, the prosecution
may call them, have them give evidence, and then forget to ask the vital
question that will prove the case. Unbelievably, this happened not once but
several times with Jabiluka defendants charged with "unlawful use of a
motor vehicle". The prosecution had to prove that the "owner" they had
called as a witness actually owned the vehicle, and that it was their
actual vehicle the person was locked onto. If they only have a video of you
locked on underneath the vehicle, and no identifying features like
numberplates are visible, you could argue that it could have been any one
of a number of bulldozers, trucks etc in the area to which you were
allegedly attached. They also have to ask the owner that s/he did not give
permission for you to attach yourself to their vehicle.
TRESPASS ON A LEASE
- To prove a trespass charge, the prosecution have to be able to prove that
you were trespassing. First they have to prove that what you were supposed
to be trespassing ON, legally exists, and then they have to be able to
prove beyond reasonable doubt that YOU were there. To "prove" the lease,
the prosecution had to call into evidence the lease document, and call as
witnesses the Mining Registrar to give evidence that the lease document was
the lease document and an officer from the Surveyor General's department
with a map of the mineral lease.
- Many of the protesters were arrested on a track leading from the main
road into the lease. This track did not exist on any map. The prosecution
indicated what they claimed was the track on aerial photographs and maps of
the area, but this is not enough to prove the location of the track "beyond
reasonable doubt"- and if they can't prove where you were supposed to be
trespassing, how can they prove that you WERE trespassing? The prosecution
should have given evidence of the co-ordinates on which the defendants were
arrested, for example by using GPS markings, and then transferred them onto
a map showing the boundaries of the lease to prove that the protesters were
arrested within the marked area.
- Then again, nobody (including the police) was really sure where the
boundaries of the Jabiluka lease were when people were being arrested. The
police were told not to arrest people within 50 metres of the edge of the
main road, even though protesters had entered the lease "gate", because
this bit of land was technically "road reserve"(public land). Anybody who
was arrested immediately inside the lease, or whom the police could not
prove was more than 50 metres onto the lease when they were arrested, had
their charges dropped or got off. If you think this might work for you,
it's worth contacting the prosecution well before your case and asking how
they plan to prove you were trespassing. Remind them it's in their
interests to drop your charge before the case goes to trial if they don't
have sufficient evidence, because you intend to challenge them and you will
ask for full costs if you win (in the Northern Territory this amounts to
$710 for the first day of the trial and $450 for each extra day). Many
people had their charges dropped prior to court through this kind of
"negotiation", especially with the mass actions where the police were slack
in taking proper evidence, probably because they didn't expect to be
challenged on it.
- We also tried to show that that access track wasn't part of the lease,
which it would not have been if it had existed before the lease was
granted, because the Northern Territory Mining Act says that a lease can't
be granted over a road unless the road was made for the mining operation.
Unfortunately this didn't work because the company had been granted the
right (undertakings) to make other roads if they needed to, but this sort
of thing is definitely worth researching in your local Department of Lands
and Planning or office of Mines and Energy (or equivalent), and most of
this information is a matter of public record. One of our volunteer lawyers
questioned whether it is legally possible to trespass on a mining lease,
because of the restricted nature of some mining leaseholds. If you have
some time and are interested in investigating this, it may be worthwhile.
TRESPASS ON ENCLOSED LANDS/PREMISES
- One of the charges laid at Jabiluka against those who entered the actual
mining compound inside the lease was "trespass on enclosed lands". As well
as having to prove all of the above elements, the prosecution also had to
show that the compound was an enclosed area. It could be argued (and was
during the Jabiluka trials) that if the area being referred to is not fully
"enclosed" (ie. there is a fence but it doesn't go all the way around, the
fence has a gate or an opening, the fence doesn't touch the ground in all
places so that a person could crawl under etc) the charge can't be proven.
This is an example of how pedantic you can be, and it could well work.
TRESPASS AFTER DIRECTION TO LEAVE
- The wording of this charge in the Northern Territory is very specific as
to how the arrest must be made (check the exact detail as it applies to
your State). If ALL of these things are not done, the charge may not be
able to be proven:
- A direction to leave must be given by a police officer and/or a person
authorised by the lawful occupant. This person can be made to prove their
authorisation to give the direction by being asked to produce a letter of
authorisation from the director (or equivalent) of the occupying company,
landlord etc.
- The direction must be worded quite specifically, eg. "I am giving you a
direction to leave. If you do not leave, you will be arrested". Check the
legislation and the wording of your charge.
- You must be given a chance to comply with the direction (ie. leave.)
- You may possibly then have to be given a second warning that you will be
arrested.
If you were part of a group, the prosecution has to prove that you
personally were part of the group which was addressed (ie. by pointing you
out on a police video). They also have to prove that it was reasonably
likely that you heard the direction to leave, if you claim that you didn't.
THE LAST WORD:
The police can charge you with anything they want.
If they're not challenged, they'll get away with it.
--
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